Family Law in India - Sources & Types

Family Law holds great importance when it comes to preparing for any Law exams. It has been observed that this law has been asked in exams like CLAT, AIBE, MH CET Law or even at the CLAT-PG level.

What is Family Law?
Family law is the area of law that addresses issues related to family dynamics. It entails losing parental rights and establishing family bonds through divorce. Adoption and child custody disputes are among the issues covered by family law. India has five main family law systems: Muslim law, which applies to Muslims; Christian law, which applies to all Christians; Parsi law, which applies to all Parsis; and secular law, which includes the Special Marriage Act. Hindu law is the foundation of these systems and applies to all Sikhs, Buddhists, Jains, and Hindus. Laws based on religion are derived from religious scriptures. Furthermore, these laws have periodically been amended by parliamentary legislation.

This Story also Contains

1. Concepts of Family Law for Law Exams
2. Sources of Family Law:
3. What comes under Family Laws :

Through this article, let's understand Family Law in detail.

Concepts of Family Law for Law Exams

Family Law comprises a range of legal principles and procedures related to the relationships and responsibilities within families of India. It includes marriages, divorce, child custody, support, adoption, surrogacy, domestic violence, women's rights and many more issues like these. It has been observed that questions from the family law have been repetitively asked in national and state level entrance exams, be it CLAT,-UG AILET, MH CET LAW, CLAT-PG, APLAW CET and TSLAW CET.

Sources of Family Law:

The sources of Family Law vary depending on the specific legal system and cultural context. Here's a breakdown of some common sources:

Legislation: Statutes enacted by the legislature form the primary source of Family Law. These statutes address issues like marriage, divorce, adoption, child custody, and parental rights. Examples include the Marriage Act, the Children Act, and the Adoption and Children Act.

Case law: Judicial decisions on Family Law cases set precedents that become binding in future cases. These precedents help interpret and apply legislation and can also evolve and adapt over time.

Equity: Principles of equity, such as fairness and good conscience, can be used by courts to supplement or even override legislation in certain situations.

Civil codes: Comprehensive codes codify most areas of law, including Family Law. These codes provide clear and detailed rules on various family matters.

Judicial decisions: While less prominent than in common law systems, judicial decisions can still play a role in interpreting and applying the civil code.

Religious texts: In some legal systems, religious texts like the Bible, Quran, or Hindu scriptures serve as primary sources of Family Law. These texts are interpreted by religious scholars and applied by courts or arbitration tribunals.

Customary law: Traditions and customs specific to particular communities or religious groups can also influence Family Law in some contexts.

International treaties and conventions: These instruments set minimum standards for protecting human rights, including rights related to family life.

Academic scholarship: Writings by legal scholars can critically analyse Family Law and suggest changes to legislation or judicial practice.

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What comes under Family Laws :

Family Laws in India are quite complex and diverse, as they govern various personal matters based on different religious and secular laws. Multiple laws based on religion, with options for interfaith marriages and divorce grounds, vary, but cruelty, adultery, and desertion are common. Separate options for legal separation and divorce exist. Custody is based on the child's best interests, with sole or joint arrangements possible. Parents are obligated to support their children financially. Spouses can claim maintenance under specific conditions like limited self-sufficiency. Let's have a look in detail:

• Hindu Law

Among all legal systems worldwide, Hindu law has one of the longest continuous histories. The fundamental scriptures were the subject of countless commentaries from the seventh to the seventeenth centuries, written by authors who combined the many conflicting dharmaśāstras into cohesive systems. The British decided in 1772 to give Hindus access to the dharmaśāstras' legal system through the newly formed Anglo-Indian courts. The Indian Parliament superseded the majority of ancient Hindu law in 1955–1956 with the passage of four contemporary Acts on marriage, succession, guardianship and minority, and adoptions and maintenance. Except Hindu law, which is present in some regions of India's legal system, and customary law, which is present worldwide either in whole or in part. Hindu Law applies to Hindus, Buddhists, Jains, and Sikhs. Includes the Hindu Marriage Act, Special Marriage Act, and Hindu Adoption and Maintenance Act.

• Muslim Law

Muslim personal law is distinct and unusual from all other personal laws observed in our culture since it is not codified and derives straight from the Quran. The application of personal law to all Muslims is covered in Section 2 of The Muslim Personal Law (Shariat) Act, 1937. "Notwithstanding any custom or usage to the contrary, in all questions (save those about agricultural land) regarding intestate succession, special property of females, including personal property properly inherited or obtained under contract or gift or any other provision of Personal Law, shall apply." Except for charitable organisations, charitable institutions, and charitable and religious endowments, cases involving marriage, divorce, talaq, ila, zihar, lian, khula, and mubaraat; maintenance; dower; guardianship; gifts; trusts and trust properties; and wakfs will be governed by the Muslim Personal Law (Shariat).To fully understand Muslim personal law, one must also understand the sources of its authority.

• Christian Law

Governs Christians through the Indian Divorce Act, of 1869, and the Special Marriage Act.

Christian Family Law in India is complex due to diverse denominations and legal frameworks.

• Personal Laws: Roman Catholics follow Canon Law for marriage, annulment, and nullity. Other denominations might have internal regulations, but legal enforceability varies.

• Secular Laws: Special Marriage Act governs interfaith and civil marriages. The Hindu Marriage Act applies if both spouses belong to specific religions despite their Christian identity.

• Jurisdiction: Courts decide applicable law based on religion, denomination, and marriage ceremony type.

• Marriage: Most denominations celebrate them, but legal validity depends on specific requirements and registration.

• Divorce: Canon Law processes differ from secular court divorces.

• Challenges: Potential discrimination and lack of uniformity exist.

Parsi Law

It applies to Parsis and is based on Parsi personal laws and customs.

Parsi law governs India's Zoroastrian community, blending Hindu, British, and traditional elements. Arising from 7th-century migrations, it was influenced by British rule in the 1800s.

Salient Features of the Family Law in India

• Personal law: Deals with personal matters like marriage and inheritance.

• Religious basis: Rooted in Zoroastrian beliefs and principles.

• Community-based: The Parsi community plays a key role in its administration.

Despite existing criticisms, Parsi law remains an important part of the community's identity and heritage.

• Secular LawsApply to all citizens regardless of religion, including:

Special Marriage Act, 1954

Enables interfaith and inter-caste marriages.

• The Protection of Women from Domestic Violence Act, 2005: Women are shielded from domestic abuse by the Protection of Women from Domestic Violence Act of 2005.

• Protection of Children from Sexual Offences Act (POCSO Act), 2012: The 2012 Protection of Children from Sexual Offences Act (POCSO Act) guards against sexual abuse of minors.

• Juvenile Justice Act (Care and Protection of Children), 2015: Deals with juvenile delinquency and child protection.

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Family Law in India comprises of :

Marriage: Defines legal requirements, forms of marriage (registered, customary), void and voidable marriages, and interfaith considerations.

Divorce: Grounds for divorce differ across personal laws and secular laws, with varying procedures and waiting periods.

Children: Custody, guardianship, maintenance, adoption, and surrogacy laws vary based on religion and secular provisions.

Inheritance: The Indian Succession Act of 1925 and the applicable personal laws control how property is divided after death.

Domestic Violence: Victims of domestic abuse can obtain protection and legal remedies under the Protection of Women from Domestic Violence Act of 2005.

Hindu and Muslim law are the main topics of Family Law in India for Law Exams. To gain a thorough understanding of Hindu and Muslim law, you can study the detailed material linked above for Family Law for AIBE, Family Law for CLAT, or Family Law for CLATPG.

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